Judge acquits ex-TAP manager

Bruce Japsen, Tribune staff reporterCHICAGO TRIBUNE

A federal judge in Boston on Tuesday acquitted a former TAP Pharmaceutical Products Inc. sales executive just one day before attorneys were scheduled to make closing arguments in a case scrutinizing the company's sales practices.

Acquitted of all charges was Janice Swirski, a former national accounts manager at Lake Forest-based TAP.

She was one of 11 current or former employees charged with conspiring to pay kickbacks and bribes in order to win Tufts Health Plan's prescriptions for the prostate cancer drug Lupron.

It is the second time in less than two weeks that a defendant was acquitted or had charges dismissed in the case in which prosecutors are trying to prove that TAP employees paid bribes and gave free drugs to doctors and other customers in exchange for Lupron prescriptions.

Charges were dismissed earlier this month against another products manager, David Guido of Connecticut, because of unexplained health reasons.

This time, the decision appears to be a blow to the prosecution's case.

Prosecutors earlier this spring entered into evidence an audiotape of Swirski and another former TAP sales representative.

They were heard offering Boston-based Tufts Health Plan $60,000 in grants, plus other incentives, if it agreed to switch from a rival's drug back to TAP's more expensive prostate cancer drug.

But Judge Douglas Woodlock sided with Swirski's attorneys, who argued that because the payment was allegedly made to the HMO and not directly to a doctor, it was not a kickback as that term is defined under the law.

"We're thrilled and we're grateful that the judge would have the courage to apply the law and enter the judgment," said Tracy Miner, a Boston-based attorney representing Swirski.

Swirski was brought into the case by Dr. Joseph Gerstein, Tufts' medical director of pharmacy, who testified earlier this spring about the tapes involving Swirski and his role as a whistle-blower secretly working with federal prosecutors.

Tufts Health Plan had no comment when reached Tuesday afternoon.

During the taped negotiations, Swirski said TAP could not give Tufts a discount on Lupron's price but would give Tufts $20,000 a year in education grants for three years if it would enter an "exclusivity" deal by telling doctors it would pay only for Lupron.

TAP paid a record $885 million in 2001 to settle charges similar to those now facing the company's employees. The 11 people on trial were not covered in the company settlement.

Gerstein and Tufts received $17 million in whistle-blower payments for helping the government.